Recently the "guideline for the supervision and regulation
of the nutritional composition of foodstuff and its advertisement
("the guideline") was published by the
Undersecretary of Health.
The guideline´s main objective is to, "guide the
process of supervision and regulation of foodstuff", taking
into consideration the upcoming implementation of Decree No. 13
(June 27, 2016), which modifies the Health Regulations for Food
This document puts special emphasis on two main articles of the
Decree No. 13 (articles 120 bis and 110 bis), which regulate the
use of the warning sign "HIGH IN", advertisements
targeted at children who are 14 years of age or younger and sales
and marketing of foodstuff in pre-school, elementary and secondary
Thus, some relevant aspects raised by the guideline are related
to the advertisement of "HIGH IN" foods and the
difference between fair use of a registered trademark and
Regarding advertising, the guideline distinguishes between
activities related to marketing and those that involve mass media
advertisements. In this context, the guideline refers to the
shape of the product (for example a cookie or a
candy with an animal shape). The guideline allows the use of these
kinds of shapes and the use of the product's image in the
packaging, provided it is a realistic depiction.
In this regard, the guideline provides that, "the elements
directed at children 14 years of age or younger and which have been
registered as trademarks, may be used in the labeling and wrapping
in the same way in which they havebeen
accepted in their trademark registration, otherwise these
elements will be considered as advertisement. On the contrary,
fantastic or unreal images of the product, such as disproportionate
images will be considered as advertising directed at children who
are 14 years of age or younger" (emphasis added in the
Furthermore, the guideline states that elements
registered as trademarks may be used in the labeling or
packaging of the products but only if used in the same way in which
they have been registered, otherwise they will be considered as
advertising. Indeed, the guideline sustains that, "the
elements directed at children 14 years of age or younger and which
have been registered as trademarks, may be used on the packaging,
wrapping or labeling in the same way in which they
havebeen accepted in their trademark
registration, otherwise these elements will be considered
as advertisement (emphasis added in the
Please take into consideration that, although the guideline is a
helpful resource to know the criteria of the health authority in
light of possible future infringement procedures, the guideline is
not binding and thus it is not possible to assume that this
criteria will remain consistent in the future.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Decree Number 8,772 of May 11 2016 regulates Law Number 13,123 of May 20 2015, known as the Biodiversity Law, which provides for access to GH, protection and access to ATK...
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